Halstead Legal Complaint Dismissal

Case 1:20-cv-03474-SCJ Document 54 Filed 09/28/21 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROGER HALSTEAD, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 1:20-CV-03474-SCJ
)
FIDEL ESPINOZA, et al., )
)
Defendants. )
DEFENDANTS’ MOTION TO ALTER OR AMEND JUDGMENT

AND/OR FOR RECONSIDERATION
PURSUANT TO RULE 59(e)
COME NOW Defendants City of Dunwoody, Grogan, Fladrich, Deutsch,
Linton, Lowery, and Stojka (“these Defendants”) and, in accordance with Rule 59(e)
of the Federal Rules of Civil Procedure and Local Rule 7.2(E), N.D.Ga., make and
file this Motion to Alter or Amend Judgment and/or for Reconsideration Pursuant to
Rule 59(e). 1 By this Motion, these Defendants request that this Court exercise its
authority and discretion pursuant to Rule 59(e) to amend its August 31, 2021 Order
of Dismissal, [Doc. 49], to correct a clear error of law; namely, to make explicit its
implicit findings (a) that Plaintiff engaged in a clear pattern of delay, contumacious
1
Through his counsel of record, Defendant Espinoza has expressly authorized
the undersigned to represent to the Court that he joins with these Defendants in this
Motion.
conduct, and/or willful contempt and (b) that lesser sanctions would not suffice to
remedy said conduct. No further amendments to the Court’s August 31, 2021 Order
are requested.
Respectfully submitted, this 28th day of September, 2021.
s/ R. Read Gignilliat
R. Read Gignilliat
Georgia Bar No. 293390
Timothy J. Holdsworth
ELARBEE, THOMPSON, SAPP & WILSON, LLP

800 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]
[email protected]
Attorneys for Defendants City of Dunwoody,

Billy Grogan, Oliver Fladrich, Lynn Deutsch,
Eric Linton, Sharon Lowery, and Nicole Stojka
-2-
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this Motion complies with the font and
point selections approved by the Court in Local Rule 5.1C. This Motion has been
prepared in Times New Roman, 14 point.
R. Read Gignilliat

(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]


ATLANTA DIVISION
ROGER HALSTEAD, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 1:20-CV-03474-SCJ
)
)
Defendants. )
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing DEFENDANTS’
MOTION TO ALTER OR AMEND JUDGMENT AND/OR FOR
RECONSIDERATION PURSUANT TO RULE 59(e) with the Clerk of Court
using the CM/EMF system which will automatically send email notification of such
filing, constituting service, to the following attorneys of record:
Laura E. Austin Theodore P. Meeker III

Counsel for Plaintiff Counsel for Defendant Espinoza
R. Read Gignilliat

(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]

-2-
Case 1:20-cv-03474-SCJ Document 54-1 Filed 09/28/21 Page 1 of 24

ATLANTA DIVISION
ROGER HALSTEAD, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 1:20-CV-03474-SCJ
)
)
Defendants. )
MEMORANDUM IN SUPPORT OF DEFENDANTS’

MOTION TO ALTER OR AMEND JUDGMENT
AND/OR FOR RECONSIDERATION
PURSUANT TO RULE 59(e)
COME NOW Defendants City of Dunwoody, Grogan, Fladrich, Deutsch,
Linton, Lowery, and Stojka (“these Defendants”) and, in accordance with Rule 59(e)
of the Federal Rules of Civil Procedure and Local Rules 7.1(A)(1) and 7.2(E),
N.D.Ga., submit this Memorandum in Support of their Motion to Alter or Amend
Judgment and/or for Reconsideration Pursuant to Rule 59(e). By this Motion, these
Defendants request that this Court amend its August 31, 2021 Order of Dismissal,
[Doc. 49], for the sole and exclusive purpose of making explicit its implicit findings
(a) that Plaintiff engaged in a clear pattern of delay, contumacious conduct, and/or
willful contempt and (b) that lesser sanctions would not suffice to remedy said
conduct. In support of this Motion, these Defendants show the Court as follows:
RELEVANT BACKGROUND
The procedural history of this action – even if merely summarily presented –
demonstrates conclusively the pattern of delay, contumacious conduct, and willful
contempt for the Court’s instructions, applicable pleading rules, and controlling legal
precedents consistently exhibited by Plaintiff from the moment this action was
removed to this Court and continuing unabated until its dismissal by this Court in its
August 31 Order. [Doc. 49.] This pattern of delay, contumacious conduct, and
willful contempt also serves to conclusively establish that sanctions lesser than
dismissal with prejudice would not suffice to remedy this conduct.
A. Plaintiff’s Frivolous Motion to Remand Filed in Response to Defendants’

Motions for More Definite Statement
On August 28, 2020, one week after removal, these Defendants filed a timely
Motion for More Definite Statement on the grounds that the allegations of the
Complaint, in addition to being vague and ambiguous in numerous respects, were
presented in such a disorganized, haphazard, and convoluted manner as to render the
entire pleading unintelligible. [Doc. 3.] In further support of their Motion, these
Defendants also demonstrated that the Complaint constituted an impermissible
-2-
“shotgun pleading” in multiple respects and that it was otherwise drafted without
regard for controlling pleading standards.1
Tacitly admitting the merits of Defendants’ motions for more definite
statement, Plaintiff opted to attempt to circumvent them rather than to oppose them.
To this end, by Motion filed September 17, 2021, Plaintiff sought to escape
Defendants’ motions by urging the Court to remand this action to the Superior Court.
[Doc. 11.] In so doing, Plaintiff blatantly misrepresented controlling law by arguing
that these Defendants’ Notice of Removal was defective in that Defendant Espinoza
was not a party to it and failed to file his own Notice of Removal. [Doc. 11, ¶ 4.]
Plaintiff presented this argument despite the plain language of 28 U.S.C. §
1446(b)(2)(A) which requires only that “all defendants … join in or consent to the
removal of the action.” (Emphasis added.) In this instance, Defendant Espinoza had
clearly consented to removal – as was both affirmatively alleged in the Notice of
Removal, [Doc. 1, ¶ 8], and expressly stated by Defendant Espinoza himself in a
written, signed, and dated Notice of Consent to Removal conspicuously attached as
an Exhibit to the Notice of Removal. [Doc. 1, Exh. B.]
1
Defendant Espinoza, separately represented in this action, filed a Motion for
More Definite Statement of his own on similar grounds. [Doc. 4.] Through his
counsel of record, he has authorized these Defendants to represent to the Court that
he joins with them in the instant Motion to Alter or Amend Judgment.
-3-
Perhaps even more egregiously, Plaintiff completely ignored the legal
authority cited by these Defendants in their Notice of Removal which unequivocally
sanctioned the approach employed by them in demonstrating Defendant Espinoza’s
consent to removal in accordance with 28 U.S.C. § 1446(b)(2)(A). 2 While the
Notice of Removal was necessarily prepared and filed prior to these Defendants
having any idea to which District Judge the action would be assigned, as it happened,
the aforementioned legal authority relied upon by these Defendants – and ignored
by Plaintiff – were authored by this Court.3 Had he any genuine interest in
prosecuting his claims and otherwise conducting this litigation in a manner
consistent with professional standards and within the strictures of Rule 11, Plaintiff
would have taken the few minutes necessary to read the text of 28 U.S.C. §
1446(b)(2)(A) and the Goss and Payne decisions cited by these Defendants in their
2
That Plaintiff completely ignored the cited legal authority – and failed to
independently research the issue – is patent from his false assertion that “[there] is
no authority to support Defendants’ contention that multiple defendants can rely on
a single defendant’s compliance with 28 U.S.C. § 1446(a).” [Doc. 11, ¶ 12.] This
assertion also misdescribes the Notice of Removal (which was filed on behalf of
“multiple defendants” and expressly consented to/relied on by a “single defendant”).
3
Goss v. Aetna, Inc., 360 F. Supp. 3d 1364, 1369-1370 (N.D. Ga. 2019)
(Jones, J.) and Payne v. Albertelli Law LLC, No. 1:16-CV-4492, 2017 WL 2903359,
*3-5 (N.D. Ga. Apr. 17, 2017) (Jones, J.). [Doc. 1, ¶ 8.]
-4-
Notice and acknowledged the complete and utter frivolity of his argument that
Defendants’ Notice of Removal was procedurally flawed.
The same is true for Plaintiff’s alternative argument in support of his Motion
to Remand – that notwithstanding its inclusion of “claims pursuant to 42 U.S.C. §
1983,” because “the crux” of his Complaint consists of state law claims, “there is no
federal question jurisdiction.” [Doc. 11, ¶¶ 6-7.] Tellingly, Plaintiff purported to
support this blatant misstatement of the law by quoting from – but conveniently
omitting a proper citation to – the Supreme Court’s decision in Merrell Dow
Pharmaceuticals Inv. v. Thompson, 478 U.S. 804 (1986). A review of that case
quickly reveals why Plaintiff would be motivated to hamper Defendants and the
Court’s ability to locate it, as the quote he relies upon was taken out of context and
has no application whatsoever to the present action.
In Merrell Dow, the defendant removed the action to federal court on federal
question grounds, notwithstanding the fact that the complaint asserted state law
claims exclusively. In no way like Defendants herein, the Merrell Dow defendant
attempted to justify removal by noting that the plaintiffs’ state law negligence claim
referenced a federal statute as establishing the standard of care allegedly violated by
the defendant, which plaintiffs contended gave rise to a rebuttable presumption of
negligence under applicable state law. In this context – which is not even remotely
-5-
analogous to the present action – the Merrell Dow Court observed that “the mere
presence of a federal issue in a state cause of action does not automatically confer
federal-question jurisdiction.” 478 U.S. at 813. Thus, the Court concluded its
analysis by holding that “a complaint alleging a violation of a federal statute as an
element of a state cause of action … does not state a [federal] claim [within the
meaning of] 28 U.S.C. § 1331.” (Emphasis added.) Id. at 817. As Plaintiff no doubt
recognized, this is nothing whatsoever like the present action, in which he directly
asserted federal claims for damages and other forms of relief against Defendants.
In short, Plaintiff’s Motion to Remand was frivolous and filed in a bad faith
effort to circumvent Defendants’ pending motions for more definite statement by
attempting to mislead the Court into improperly remanding this action to the
Superior Court.4
4
Further evidencing his bad faith in this regard, Plaintiff filed motions
requesting extensions of time in which to file responses in opposition to Defendants’
respective motions for more definite statement. [Doc. 8, 9.] In so doing, Plaintiff
sought thirty additional days in which to prepare and file the responses in opposition
to Defendants’ motions – nearly triple the standard response time. [Doc. 8, ¶ 10;
Doc. 9, ¶ 9.] As is plainly apparent now, however, Plaintiff never intended to respond
to Defendants’ motions for more definite statement; rather, the sole purpose of
seeking such long extensions of time in which to do so was to delay submission of
Defendants’ motions and increase the possibility that the Court would reach his
subsequently filed Motion to Remand first. Not surprisingly, therefore, Plaintiff
allowed both the original and proposed extended deadlines expire without ever
responding to Defendants’ motions.
-6-
B. Plaintiff’s Conduct Following the Court’s Order Granting Defendants’

Motions for More Definite Statement
By Order entered January 6, 2021, this Court granted Defendants’ motions for
more definite statement and directed Plaintiff to rectify the numerous identified
pleading deficiencies in his initial Complaint through the preparation and filing of a
First Amended Complaint compliant with federal pleading standards. [Doc. 23.] 5
Plaintiff filed his First Amended Complaint on February 5, 2021, [Doc. 25] – a
review of which revealed nothing more than a superficial effort to cure the identified
pleading deficiencies and comply with the Court’s directives. Therefore, on
February 25 and March 2, respectively, these Defendants and Defendant Espinoza
moved for an order dismissing Plaintiff’s First Amended Complaint, or alternatively,
for an order once again requiring Plaintiff to present a more definite statement of the
alleged facts supporting his myriad claims. [Doc. 26; Doc. 27.]
5
Among other things, the Court expressly instructed Plaintiff to prepare his
Amended Complaint in a manner consistent with the following enumerated pleading
requirements: (1) references to Defendants by last name/entity name (e.g.,
“Defendant Espinoza” or “Dunwoody”), rather than by numbers; (2) separate,
simple, concise, and direct statements of each claim for relief; (3) numbered
paragraphs limited to a single set of circumstances, with only the circumstances that
apply to a particular claim for relief set forth under that claim; and (4) clear
indications of which claims are being brought against which Defendants. See Order,
[Doc. 23, at p. 6.]
-7-
In support of their respective motions, Defendants established that in filing
his First Amended Complaint, Plaintiff flatly failed to comply with either the explicit
directives of this Court’s January 6, 2021 Order, [Doc. 23], or the pleading standards
of Rules 8(a)(2) and 10(b), choosing instead to focus his time and attention on
blatantly exploiting the amendment opportunity presented by the Court’s Order for
unauthorized purposes. [Doc. 26-1, p. 5; Doc. 27-1, p. 2.] Accordingly, Defendants
argued that Plaintiff’s First Amended Complaint should be dismissed with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the Court’s
“inherent power” over its docket. [See generally Doc. 26-1; Doc. 27-1.]
In particular, through these motions, Defendants demonstrated that Plaintiff’s
conduct more than minimally satisfied the standards for dismissal with prejudice
under both Rule 41(b) and the Court’s inherent power, in that there existed a “clear
record of delay or willful contempt” which compelled the finding that no lesser
sanction would suffice. [Doc. 26-1, p. 19 (citing Gratton v. Great Am.
Communications, 178 F.3d 1373, 1374 (11th Cir. 1999) and Mingo v. Sugar Cane
Growers Co-op of Florida, 864 F.2d 101, 102 (11th Cir. 1989).] In so doing, both
Defendants enumerated the following examples of specific conduct:
• The First Amended Complaint is nearly impenetrable as drafted, in that it

is replete with grammatical and semantical errors, redundancies, and
obtuse paragraph and sentence structures – resulting in a body of
-8-
allegations that range from the extraordinarily difficult to decipher to the

absolutely and completely incomprehensible – such that the ability of these
Defendants to prepare a meaningful Answer remains impaired;
• The First Amended Complaint fails to provide a separate, simple, concise,

and direct statement of Plaintiff’s claims for relief, as expressly directed
by the Court in its January 6, 2021 Order, [Doc. 23];
• Plaintiff failed to both limit his numbered paragraphs to a single set of

circumstances and to provide only those circumstances that apply to a
particular claim of relief under said claim, as ordered by this Court, [id.];
• Plaintiff failed to fully provide clear indications of which claims are being
brought against which defendants, as ordered by this Court, [id.]; and
• Plaintiff improperly exploited the opportunity to cure the defects in his

complaint by adding claims and theories of recovery for which he neither
sought nor received leave of Court.
[Doc. 26-1, pp. 5-21.]
Tacitly admitting the merits of defendants’ motions to dismiss, Plaintiff
employed his previous tactic in an attempt to circumvent the motions rather than
oppose them. In particular, by Motion filed March 2, 2021, Plaintiff sought to render
Defendants’ motions to dismiss moot by urging the Court to grant him leave to
further amend his First Amended Complaint. [Doc. 32.] In so doing, Plaintiff
presented a proposed Second Amended Complaint to the Court that not only greatly
amplified the pleading deficiencies identified in the two previous iterations of his
-9-
Complaint, but which bore no resemblance whatsoever to the amended pleading
described by Plaintiff in his Motion for Leave to Amend.
In his Motion for Leave to Amend, Plaintiff represented to the Court that the
proposed Second Amended Complaint would bring clarity as to “which counts
and/or causes of action are directed as to each Defendant” by, among other things,
“narrowly tailor[ing]” his previously asserted allegations and claims to provide “a
better outline” of his causes of action. [Doc. 32, ¶¶ 8, 17.] Plaintiff further
represented to the Court that allowing his proposed Second Amended Complaint to
be filed would not cause Defendants to “suffer any undue prejudice,” inasmuch as it
would not, among other things, require them to “defend against new facts or
theories.” [Doc. 32, ¶ 18.] A review of Plaintiff’s proposed Second Amended
Complaint revealed that none of these representations were true. 6
6
With regard to Plaintiff’s representation that the proposed Second Amended
Complaint would add clarity and organization to his allegations and claims, the
Court’s own assessment is dispositive: “The Proposed Second Amended Complaint
spans four attachments and 154-pages, which is approximately twice the length of
Plaintiff’s first two Complaints. … It does not remedy any of the above-mentioned
deficiencies—if anything, it exacerbates them. It continues to reincorporate
paragraphs throughout successive counts. … The Second Amended Complaint also
includes numerous pictures of text message exchanges and individuals inserted in
between paragraphs. None of these images were included in the previous iterations
of the Complaint, and Plaintiff does not allege any facts as to who or what is included
in the images, when or by whom each image was taken, transmitted, received, or
viewed, or how the images relate to his claims. Plaintiffs Second Amended
Complaint is a step away from—not toward—compliance with this Court’s Order
- 10 -
Consistent with the manner in which he has consistently conducted this
litigation and despite having been called out by Defendants for improper exploitation
of the Court’s January 6, 2021 Order nearly two weeks earlier, [Doc. 26-1, p. 17 &
n. 17] – Plaintiff still made no effort to seek leave of Court to add those improperly
asserted claims. To the contrary, in addition to quietly reasserting those claims,
Plaintiff purported to add even more previously unasserted claims to his proposed
Second Amended Complaint.7 Most egregiously, he did so despite misleadingly
implying in his Motion for Leave to Amend that the proposed Second Amended
Complaint would merely bring clarity and organization to his prior allegations and
causes of action and, as such, would not require Defendants “to defend against new
facts or theories.” [Doc. 32, ¶ 18; see also id., ¶¶ 8, 17 (implying that the proposed
Second Amended Complaint would provide a better outline of which existing
counts/causes of action are directed to which Defendant).]8
and the federal pleading standards. As such, the Court concludes repleading would
be futile.” [Doc. 49, pp. 13-14; see also id., p. 12 n. 5 (“[E]ven a cursory review of
the 154-page Proposed Second Amended Complaint reveals that it does little or
nothing to address the issues identified by this Court or Defendants.”).
7
I.e., claims under 42 U.S.C. § 1985, 42 U.S.C. § 1988, and, inexplicably, 42
U.S.C. § 1981, as well as generic claims for “Conspiracy” and Hostile Work
Environment,” among others.
Because he preferred for the Court to believe that his proposed amendment
8
would merely clarify and organize his existing allegations and claims, Plaintiff
- 11 -
In short, Plaintiff’s Motion for Leave to Amend was frivolous and filed in a
bad faith effort to circumvent Defendants’ pending motions to dismiss by attempting
to mislead the Court into allowing him to sneak even more new claims and theories
of recovery into the case through a Second Amended Complaint which, in nearly all
material respects, was more out of line with applicable pleading standards and the
Court’s prior directives than either of his prior complaints.9
included the new claims in his proposed Second Amended Complaint without
identifying the addition of new claims as part of the relief sought through his Motion
for Leave to Amend as required by Rule 7(b)(1)(C). See Ware v. Alliance One
Receivables Management, No. 1:13-CV-00369-CC-GGB, 2013 WL 12382901, at
*2 (N.D. Ga. 2013) (citing Fed. R. Civ. P. 7(b)(1)(B) & (C); LR 7.1, N.D.Ga.).
9
Further evidencing his bad faith in this regard, Plaintiff once again filed
motions requesting extensions of time in which to file responses in opposition to
Defendants’ respective motions to dismiss. [Doc. 29, 30.] In so doing, Plaintiff again
sought thirty additional days in which to prepare and file the responses in opposition
to Defendants’ motions – nearly triple the standard response time. [Doc. 29, ¶ 9;
Doc. 30, ¶ 9.] As before, however, Plaintiff obviously never intended to respond to
Defendants’ motions to dismiss; rather, the sole purpose of seeking such long
extensions of time in which to do so was to delay submission of Defendants’ motions
and increase the possibility that the Court would reach his subsequently filed Motion
for Leave to Amend first. Not surprisingly, therefore, Plaintiff once again allowed
both the original and proposed extended deadlines to expire without responding to
Defendants’ motions. While Plaintiff would eventually file a response in opposition
to Defendants’ motions to dismiss, he did so on May 8, 2021 – more than two months
after the original deadline (which was never extended by the Court) and more than
a month after the proposed extended deadline. [Doc. 42.] As such, like their initial
motions for more definite statement, Defendants’ motions to dismiss were properly
submitted to the Court as unopposed. See Local Rule 7.1(B), N.D.Ga.
- 12 -
C. The Court’s Ruling on Defendants’ Motions to Dismiss and Plaintiff’s

Motion for Leave to Amend
On August 31, 2021, this Court found that Plaintiff’s First Amended
Complaint was due to be dismissed pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure and this Court’s inherent authority over its docket. [Doc. 49.]
Having had the benefit of Plaintiff’s proposed Second Amended Complaint, the
Court further found that repleading would be futile. [Id.]10 In so doing, this Court
sustained every ground presented by these Defendants and Defendant Espinoza
establishing that Plaintiff engaged in a clear pattern of delay, contumacious conduct,
and/or willful contempt of the Court’s directives, as well as applicable pleading
standards and procedures under the federal and local rules and controlling legal
precedents, and that lesser sanctions would not suffice to remedy said conduct.
Notwithstanding the foregoing, this Court did not explicitly reference these
grounds as satisfying the general requirement that dismissal under both Rule 41(b)
and the inherent power of the Court is warranted where there is a “clear record of
delay or willful contempt and a finding that lesser sanctions would not suffice.” See,
10
In the words of the Court, “[R]epleading [is not] likely to cure the First
Amended Complaint’s many deficiencies. Indeed, Plaintiff has already shown this
Court what a second attempt at repleading would look like in the Proposed Second
Amended Complaint attached to his Motion to Amend.” (Citations and footnote
omitted.) [Doc. 49, pp. 11-12.] See also fn. 6, supra.
- 13 -
e.g., Gratton, 178 F.3d at 1374; Mingo, 864 F.2d at 102. As such, while believing
that these findings are necessarily implicit, by the present Motion, these Defendants
request that the Court amend its August 31, 2021 Order, [Doc. 49], to include explicit
findings regarding the existence of a clear record of delay or willful contempt and
that lesser sanctions would not suffice.
ARGUMENT AND CITATION OF AUTHORITY
Rule 59(e) permits parties – including prevailing parties – to file a motion to
alter or amend a judgment of the Court within twenty-eight days of the entry of
judgment. See Fed. R. Civ. P. 59(e). Importantly, as this Court has previously
observed, this right exists even where, as here, the Rule 59(e) motion is preceded by
the filing of a notice of appeal. See Odion v. Google, Inc., No. 1:13-cv-03906-SCJ,
2014 WL 12647930 *1-2 (N.D.Ga. Oct. 31, 2014) (Jones, J.) (“A notice [of appeal]
filed before the filing of one of the [motions specified in Fed. R. App. P.
4(a)(4)(A)(iv)] is, in effect, suspended until the motion is disposed of, whereupon,
the previously filed notice effectively places jurisdiction in the court of appeals.” …
A Rule 59 motion to alter or amend the judgment is one of the specified motions.”
[Citations omitted.]).
The decision to alter or amend a judgment under Rule 59(e) “is committed to
the sound discretion of the district judge.” (Citations omitted.) Am. Home Assurance
- 14 -
Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985).
Generally, a Rule 59(e) motion will only be granted on one of the following
grounds: “[A]n intervening change in controlling law, the availability of new
evidence, or the need to correct clear error or prevent manifest injustice.” United
States v. Battle, 272 F. Supp. 2d 1354, 1357 (N.D. Ga. 2003).11 As previously noted,
this Court’s August 31, 2021 Order does not explicitly reference the various grounds
supporting dismissal of this action with prejudice as establishing the requisite “clear
record of delay or willful contempt” and “finding that lesser sanctions would not
suffice.” See, e.g., Gratton, 178 F.3d at 1374; Mingo, 864 F.2d at 102.
In view of the foregoing, Defendants’ Motion is predicated on the Court’s
August 31, 2021 Order containing clear errors of law, which it may remedy by
amending the Order pursuant to Rule 59(e) so as to make the above-stated findings
explicit. See id.; see also Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333,
1338-39 (11th Cir. 2005) (dismissal with prejudice warranted when district court
finds both [1] that party engaged in clear pattern of delay, contumacious conduct or
11
Conversely, a Rule 59(e) motion “is not to serve as a vehicle to relitigate
old matters or present the case under a new legal theory ... [or] to give the moving
party another ‘bite at the apple’ by permitting the arguing of issues and procedures
that could and should have been raised prior to judgment.” (Alterations in original;
citation omitted.) Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000). These
Defendants’ Rule 59(e) Motion does not run afoul of these restrictions.
- 15 -
willful contempt and [2] that lesser sanctions would not suffice). As such, it is
appropriate that the Court exercise its discretion and authority under Rule 59(e) to
amend its August 31, 2021 Order to make explicit findings that Plaintiff engaged in
a clear pattern of delay, contumacious conduct or willful contempt and that sanctions
lesser than dismissal with prejudice would not suffice. See, e.g., Saylor v. Barrow
Cty., 2:09-CV-0172-WCO, 2010 WL 11601724, at *2 (N.D. Ga. June 2, 2010)
(granting motion for reconsideration of order where movant alleged that court failed
to specifically state whether or not certain claims were dismissed). 12
In this regard, as stated in these Defendants’ Motion to Dismiss and reiterated
in the present Motion, the record provides ample support for the finding that Plaintiff
engaged in clear pattern of delay, contumacious conduct or willful contempt –
particularly with regard to his persistent failure or refusal to comply with the federal
pleading standards and the Court’s directives regarding the re-pleading of his
Complaint. Indeed, these Defendants submit that an examination of the First
Amended Complaint cannot plausibly yield any other finding, given Plaintiff’s
election to file yet another shotgun pleading, to recast his allegations to make it even
12
As this Court has previously observed, the standards for a general motion
for reconsideration under L.R. 7.2(E) and Rule 59(e) “overlap.” Odion, 1:13-CV-
03906-SCJ, 2014 WL 12647930, at *3, n.4.
- 16 -
more difficult for these Defendants to ascertain what allegations have purportedly
been incorporated into which counts, and to perpetuate the use of grammatical and
semantical errors, redundant allegations, obtuse sentence and paragraph structure,
non-chronological factual assertions, and other writing methods that make the bulk
of the Amended Complaint incomprehensible.13
Plaintiff’s acts and omissions in this regard also serve to establish the
inadequacy of lesser sanctions. See Coleman v. Chase Home Finance, LLC, No.
1:12-CV-0013-AT, 2012 WL 13013589, at *4 (N.D. Ga. June 22, 2012) (finding
lesser sanctions would not suffice where plaintiff failed to respond to defendant’s
earlier motion and another order for plaintiff to resubmit his complaint would likely
beget fresh round of shotgun pleading with no consequence other than continued
delay), adopted, 2012 WL 13013636 (N.D. Ga. July 27, 2012); Cummings v.
Mitchell, No. CV-118-161, 2020 WL 682032, at *4 (S.D. Ga. Nov. 19, 2020)
(finding lesser sanctions would not suffice where plaintiff disobeyed court order by
13
And, in the process, improperly exploiting the re-pleading opportunity to
sneak new claims into the First Amended Complaint and expand upon existing
claims – not to mention his subsequent efforts to accomplish similar results through
his proposed Second Amended Complaint by grossly misdescribing its content and
effect in his Motion for Leave to Amend, as well as the other conduct described in
these Defendants’ prior briefs in support of their Motion to Dismiss and in sub-
sections A, B, and C of the “Relevant Background” Section of this Memorandum.
- 17 -
re-filing amended complaint replete with same issues court pointed out before,
which was not a cohesive legal pleading compliant with Rules 8(a)(2) and 10(b), and
which constituted yet another impermissible shotgun pleading). Indeed, in further
regard to the inadequacy of lesser sanctions, as this Court has observed, “Plaintiff
has already shown this Court what a second attempt at repleading would look like in
the Proposed Second Amended Complaint attached to his Motion to Amend.”
(Citations and footnote omitted.) [Doc. 49, pp. 11-12; see also id., p. 12 n.5 (“[E]ven
a cursory review of the 154-page Proposed Second Amended Complaint reveals that
it does little or nothing to address the issues identified by this Court or
Defendants.”).]14
Further demonstrating that any sanction short of dismissal with prejudice
would not suffice to remedy the issues presented by Plaintiff’s conduct is the fact
that the conduct persisted and worsened – even as it was consistently being identified
and called to the Court’s attention. In this regard:
• Plaintiff employed the same delaying tactics in response to Defendants’ initial
motions for more definite statement and subsequent motions to dismiss, by
seeking thirty-day extensions of time to respond to those motions and then
14
See also fn. 6, supra.
- 18 -
devoting his efforts instead to the preparation and filing of frivolous and
grossly misleading motions to remand and for leave to amend – both designed
to circumvent Defendants’ pending motions. That this was Plaintiff’s goal is
further evidenced by the fact that, despite seeking lengthy extensions of time
in which to do so, he failed to respond to Defendants’ motions for more
definite statement and only responded to Defendants’ motions to dismiss –
more than two months after expiration of the deadline – to address reply briefs
filed by Defendants which he (erroneously) felt were improperly filed.
• In further regard to Plaintiff’s Motion to Remand, said Motion grossly
misstated the law, notwithstanding that these Defendants’ Notice of Removal
contained citations to both statutory language and two prior decisions of this
Court – either of which were more than sufficient to inform him of the actual
state of the law (as would any independent research of the issue whatsoever).
In the same Motion, Plaintiff also used a quote from a Supreme Court case –
which he failed to properly cite – that was taken out of context and clearly had
no application whatsoever to the circumstances under which this action was
removed.
• In further regard to his Motion for Leave to Amend, Plaintiff submitted a
proposed Second Amended Complaint that not only perpetuated and, in many
- 19 -
respects, amplified numerous previously identified pleading defects, he
attempted to use the Motion as an opportunity to sneak additional allegations,
claims and theories of recovery into the case – including those that he
wrongfully interjected into the case via his First Amended Complaint – by
misleadingly representing in his Motion that his proposed amendment
included no new claims or allegations.
In short, the record is replete with instances of Plaintiff’s conduct throughout
the entire course of this action both (1) conclusively establishing the requisite pattern
of delay, contumacious conduct, or willful contempt for the Court’s instructions,
applicable pleading rules, and controlling legal precedents and (2) providing
overwhelming support for the requisite finding of the inadequacy of lesser sanctions.
See, e.g., Gratton, 178 F.3d at 1374; Mingo, 864 F.2d at 102.
CONCLUSION
For the foregoing reasons, these Defendants respectfully request that the Court
exercise its discretion and authority pursuant to Rule 59(e) to reconsider and amend
its August 31, 2021 Order [Doc. 49] and make explicit findings that Plaintiff
engaged in a clear pattern of delay, contumacious conduct, or willful contempt and
that sanctions lesser than dismissal with prejudice would not suffice. A proposed
Order is included for the Court’s consideration.
- 20 -
R. Read Gignilliat
Timothy J. Holdsworth

(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]
[email protected]

- 21 -
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this Memorandum complies with the
font and point selections approved by the Court in Local Rule 5.1C. This
Memorandum has been prepared in Times New Roman, 14 point.
R. Read Gignilliat

(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]


ATLANTA DIVISION
ROGER HALSTEAD, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 1:20-CV-03474-SCJ
)
)
Defendants. )
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing MEMORANDUM
IN SUPPORT OF DEFENDANTS’ MOTION TO ALTER OR AMEND
JUDGMENT AND/OR FOR RECONSIDERATION PURSUANT TO RULE
59(e) with the Clerk of Court using the CM/EMF system which will automatically
send email notification of such filing, constituting service, to the following attorneys
of record:
Laura E. Austin Theodore P. Meeker III

Counsel for Plaintiff Counsel for Defendant Espinoza
R. Read Gignilliat

(404) 659-6700
(404) 222-9718 (facsimile)
[email protected]

-2-

ATLANTA DIVISION
ROGER HALSTEAD, .
:
:
:
Plaintiff, : CIVIL ACTION NO.
:
:
:
v. : 1:20-CV-03474-SCJ
:
:
:
FIDEL ESPINOZA, BILLY GROGAN, ::
OLIVER FLADRICH, THE CITY OF :
:
DUNWOODY, LYNN DEUTSCH, :
:
ERIC LINTON, SHARON LOWERY :
:
and NICOLE STOJKA, :
:
:
:
Defendants. :
:
:
:
PROPOSED ORDER
This matter appears before the Court on Defendants City of Dunwoody,
Grogan, Fladrich, Deutsch, Linton, Lowery, and Stojka’s Motion to Alter or Amend
Judgment and/or for Reconsideration Pursuant to Rule 59(e)1 (Doc. No. [54]).2
After due consideration, the Court enters the following Order:
1
Counsel for the above-named Defendants represents to the Court that
Defendant Espinoza joins in this Motion.
All citations are to the electronic docket unless otherwise noted, and all page
2
numbers are those imprinted by the Court’s docketing software.

I. BACKGROUND
July 7, 2020, Plaintiff filed his Complaint for Damages in the Superior Court
of DeKalb County. Doc. No. [1-1]. Plaintiff asserted various claims against
Defendants arising from sexual harassment he allegedly experienced while
employed by the City as a police officer. Id. at 7–48 (Compl.). On August 21, 2020,
Defendants filed a Notice of Removal in this Court, alleging federal jurisdiction
under 28 U.S.C. § 1331. Doc. No. [1], ¶ 7. On September 17, 2019, Plaintiff filed a
motion to remand to state court, which the Court denied. Doc. Nos. [17]; [48].
On January 6, 2021, the Court granted Defendants’ motions for a more
definite statement and ordered Plaintiff to replead pursuant to its instructions. Doc.
No. [23]. It detailed the deficiencies in Plaintiff’s Complaint, including shotgun
pleading, and ordered Plaintiff to replead with: (1) references to Defendants by last
name/entity name (e.g., “Defendant Espinoza” or “Dunwoody”), rather than
numbers; (2) a separate, simple, concise, and direct statement of each of Plaintiff’s
claims for relief; (3) numbered paragraphs limited to a single set of circumstances,
with only the circumstances that apply to a particular claim for relief set forth under
each claim for relief; and (4) clear indications of which claims are being brought
against which Defendants. Doc. No. [23], 4–7.
2
Plaintiff filed a First Amended Complaint on February 5, 2021. Doc. No. [25].
On February 25 and March 2, respectively, Defendants City of Dunwoody, Grogan,
Fladrich, Deutsch, Linton, Lowery, and Stojka (“the Dunwoody Defendants”) and
Defendant Espinoza (“Espinoza”) moved to dismiss the First Amended Complaint,
or alternatively, for a second more definite statement. Doc. Nos. [26] (Dunwoody
Motion); [27] (Espinoza Motion). The Defendants’ Motions argue that in filing his
Second Amended Complaint, “Plaintiff failed to comply with the explicit directives
of this Court’s January 6, 2021 Order, failed once again to adhere to the pleading
standards of Rules 8(a)(2) and 10(b), and exploited the amendment opportunity
presented by the Court’s order for unauthorized purposes.” Doc. Nos. [26-1], 5; [27-
1], 2. They argue Plaintiff’s First Amended Complaint should thus be dismissed
pursuant to Federal Rule of Civil Procedure 41(b). Id. They argue that dismissal with
prejudice is appropriate. Doc. Nos. [26-1], 18; [27-1], 5. Alternatively, they argue,
Plaintiff should be ordered to replead his First Amended Complaint in compliance
with federal pleading standards and this Court’s instructions. Doc. Nos. [26-1], 21;
[27-1], 6.
In support of their respective Motions, both the Dunwoody Defendants and
Espinoza presented compelling arguments that Plaintiff’s conduct satisfied the
standards for dismissal under both Rule 41(b) and the inherent power of the Court
3
to control its docket. In so doing, both the Dunwoody Defendants and Espinoza
cited Eleventh Circuit cases holding that dismissal with prejudice under both Rule
41(b) and the Court’s inherent power is warranted where there is a “clear record of
delay or willful contempt and a finding that lesser sanctions would not suffice.” Doc.
[26-1],19 (citing Gratton v. Great Am. Communications, 178 F.3d 1373, 1374 (11th
Cir. 1999) and Mingo v. Sugar Cane Growers Co-op of Florida, 864 F.2d 101, 102
(11th Cir. 1989)). Additionally, both the Dunwoody Defendants and Espinoza
enumerated examples of Plaintiff’s conduct throughout this litigation which they
contended demonstrated that Plaintiff had “willfully ignored the detailed and
specific guidance provided to him by the Court” and supported the finding that lesser
sanctions would not suffice. These reasons were that:
• The First Amended Complaint is nearly impenetrable as drafted

in that a cursory review reveals that it is replete with grammatical
and semantical errors, redundancies, and obtuse paragraph and
sentence structures – resulting in a body of allegations that range
from the extraordinarily difficult to decipher to the absolutely
and completely incomprehensible – such that the ability of these
Defendants to prepare a meaningful Answer remains impaired;
• The First Amended Complaint fails to provide a separate, simple,

concise, and direct statement of Plaintiff’s claims for relief, as
ordered by this Court;
• Plaintiff failed to both limit his numbered paragraphs to a single

set of circumstances and to provide only those circumstances that
apply to a particular claim of relief under said claim, as ordered
by this Court;
4
• Plaintiff failed to fully provide clear indications of which claims

are being brought against which defendants, as ordered by this
Court; and
• Plaintiff improperly exploited the opportunity to cure the defects

in his complaint by adding unauthorized claims.
See, e.g., Doc. [26-1], 5-21.
On August 31, 2021, this Court found that Plaintiff’s First Amended
Complaint was due to be dismissed with prejudice pursuant to Rule 41(b) and this
Court’s inherent authority over its docket. Doc. [49.] The Court also denied
Plaintiff’s Motion to Amend, finding based on a review of his proposed Second
Amended Complaint that repleading would be futile. [Id.] 3 In so doing, this Court
found itself in agreement that each ground enumerated by the Dunwoody Defendants
and Espinoza compelled the conclusion that Plaintiff had willfully ignored the
detailed and specific guidance provided to him by the Court and that no sanction
short of dismissal with prejudice would suffice to remedy the issue. Noting that the
Court had not explicitly included these dual findings in its August 31, 2021 Order,
the Dunwoody Defendants, joined by Espinoza, filed the instant Motion to Alter or
3
Plaintiff’s Motion to Amend was also denied on the grounds that it failed to
establish, or even mention, a factual or legal basis for the requested amendment. See
Ware v. Alliance One Receivables Mgmt., No. 1:13-CV-00369-CCGGB, 2013 WL
12382901, at *2 (N.D. Ga. 2013) (citing Fed. R. Civ. P. 7(b)(1)(B) & (C); LR 7.1,
NDGa.) (“[T]he proper method for requesting leave to amend is by . . . motion stating
‘with particularity the grounds for seeking the order’ and ‘the relief sought.’”).
5
Amend Judgment and/or for Reconsideration Pursuant to Rule 59(e) on September
28, 2021, requesting that the Court amend its Order to do so.
II. LEGAL STANDARD
Rule 59(e) permits parties to file a motion to alter or amend a judgment of the
Court within twenty-eight days of the entry of judgment. See Fed. R. Civ. P. 59(e).
The decision whether to grant such relief under Rule 59(e) “is committed to the
sound discretion of the district judge.” Am. Home Assurance Co. v. Glenn Estess &
Assocs., Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985) (citations omitted).
Generally, a Rule 59(e) motion will only be granted on one of the following
grounds: “an intervening change in controlling law, the availability of new evidence,
or the need to correct clear error or prevent manifest injustice.” United States v.
Battle, 272 F. Supp. 2d 1354, 1357 (N.D. Ga. 2003). Thus, a Rule 59(e) motion “is
not to serve as a vehicle to relitigate old matters or present the case under a new legal
theory . . . [or] to give the moving party another ‘bite at the apple’ by permitting the
arguing of issues and procedures that could and should have been raised prior to
judgment.” Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000) (alterations
in original; citation omitted).
6
III. DISCUSSION
By their Rule 59(e) Motion, the Dunwoody Defendants assert that the Court’s
August 31, 2021 Order appears to contain a clear error of law because it includes no
explicit findings that Plaintiff’s actions constituted a clear record of delay or willful
contempt or that a lesser sanction than dismissal with prejudice would not suffice.
Upon careful consideration, the Court agrees, and further finds that the Dunwoody
Defendants have demonstrated that the requested amendment to the August 31, 2021
Order is both supported by the record and appropriate relief. See Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1338-39 (11th Cir. 2005) (dismissal of a
case with prejudice is warranted upon the district court’s findings both that a party
has engaged in a clear pattern of delay or willful contempt and that lesser sanctions
would not suffice).
Accordingly, for the following reasons, the Court concludes that Plaintiff’s
First Amended Complaint is due to be dismissed pursuant to Federal Rule of Civil
Procedure 41(b) and this Court’s inherent authority over its docket. It also concludes
repleading would be futile.
A. Plaintiff’s First Amended Complaint Fails to Comply with Both

Federal Rule of Civil Procedure 8 and this Court’s Previous Order
Plaintiff was already given one opportunity to replead his claims, with specific
instructions from the Court. He failed to do so. “Implicit in [an order to replead] is
7
the notion that if the plaintiff fails to comply with the court’s order—by filing a
repleader with the same deficiency—the court should strike his pleading or,
depending on the circumstances, dismiss his case and consider the imposition of
monetary sanctions.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th Cir.
2018) (internal quotation omitted). If the requisite chance is afforded and the
plaintiff “fails to remedy the defects, the district court does not abuse its discretion
in dismissing the case with prejudice on shotgun pleading grounds.” Id.; see also
Marshall v. Defendants, No. CIV.A. 06-0840-CB-M, 2008 WL 4155539, at *4 (S.D.
Ala. Sept. 2, 2008) (“When a re-pled complaint does not comply with Rule 8(a), then
the complaint is due to be dismissed under Rule 41(b) for failure to provide a short
and plain statement as required by Rule 8(a).”).
First, Defendants argue, and the Court agrees, that Plaintiff’s First Amended
Complaint is drafted in a way that renders it “nearly impenetrable.” Doc. No. [26-
1], 6. The myriad grammatical errors, confusing sentence structure, and run-on
sentences make it extremely difficult to decipher. To take one example, the first
sentence of the “Introduction” states:
This case seeks to vindicate the Eleventh Amendment § 1983

employment practices that violated Plainitff [sic] HALSTEAD’S
Constitutional Rights & Fourteenth Amendment rights of the Plaintiff
to Due Process of Law with its Protections, and a Title 18 claim under
§242, and Tort and common law claims for Intentional infliction of
emotional distress, Defamation, assault and battery, et al [sic] and all
8
other Constitutional Amendments not heretofore mentioned, as a

Decorated Law Enforcement officer who was subjected to horrendous
hostile work environment , deprivation of due process and his
Constitutional Rights and Privileges and Harassment/sexual
harassment by his supervising officer, ESPINOZA, and others working
in concert with him to deny Halstead his Constitutional Rights and
privileges.
Doc. No. [25], 2. This 116-word sentence is so difficult to follow, it fails to provide
fair notice of the nature of the claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (“[A] plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions . . . .” (internal citations and
alterations omitted)). The First Amended Complaint is riddled with such convoluted
sentences.
Second, Plaintiff failed to provide separate, simple, concise, and direct
statement of each of Plaintiffs’ claims for relief, as ordered. See Doc. No. [23], 6.
Indeed, Plaintiff committed—for the second time—the “mortal sin” of shotgun
pleading: “multiple counts where each count adopts the allegations of all preceding
counts, causing each successive count to carry all that came before and the last count
to be a combination of the entire complaint.” 4 Weiland v. Palm Beach Cty. Sheriff's
4
See Doc. No. [25], ¶ 59 (expressly incorporating “the allegations in the above
paragraphs, as if fully set forth herein”); ¶ 63 (expressly incorporating “the preceding
paragraphs of background facts, persons, jurisdiction, venue as if set out herein”); ¶
67 (expressly incorporating “the preceding paragraphs of background facts,
9
Office, 792 F.3d 1313, 1321 (11th Cir. 2015). This reincorporation renders the First
Amended Complaint extremely confusing. For example, Plaintiff regularly
reincorporates “background facts” without defining this term or otherwise indicating
what it is intended to encompass.5 The Court’s previous Order explicitly warned
against such reincorporation. Doc. No. [23], 3–4.
Third, Plaintiff’s paragraphs are still not limited to a single set of
circumstances; nor are the circumstances that apply to a particular claim for relief
set forth under each claim for relief. See Doc. No. [23], 6 (ordering Plaintiff to
provide “separate, simple, concise, and direct statement of each of Plaintiffs’ claims
for relief” and “[n]umbered paragraphs limited to a single set of circumstances, with
jurisdiction, venue, and persons herein”); ¶ 71 (expressly incorporating “the

preceding paragraphs as set out for jurisdiction, venue, persons, and background
facts”); ¶ 77 (expressly incorporating “the preceding paragraphs for Jurisdiction,
Venue, and Persons, Introduction and background facts”); ¶ 84 (expressly
incorporating “the preceding paragraphs as parties, jurisdiction, venue and
background information”); ¶ 91 (expressly incorporating “the preceding paragraphs
as alleged above”); ¶ 95 (expressly incorporating “the preceding paragraphs as
parties, Jurisdiction, Venue and background information”); ¶ 99 (same); ¶ 108
(same); ¶ 120 (same); ¶ 131 (same); ¶ 138 (expressly “realleg[ing] and
incorporat[ing] the Parties, Jurisdiction, Venue and Background Facts to the extent
relevant as if fully set forth in this claim”); ¶ 144 (expressly “realleg[ing] and
incorporat[ing] the Parties, Jurisdiction, venue and background facts as if fully set
out herein”).
5
See supra n.4.
10
only the circumstances that apply to a particular claim for relief set forth under each
claim for relief”). As before, the First Amended Complaint is “rife with conclusory
allegations and facts seemingly irrelevant to the information at the beginning of the
paragraph.” Id. at 5. Plaintiff continues to cross-reference different claims and legal
theories in his various counts and causes of action, with vague references to
extraneous “facts.”6 The alleged facts do not appear to be chronological, but rather
skip around in time with few or no dates certain provided. It remains entirely unclear
what alleged facts support which claims for relief.
Fourth, while some claims are now clearly brought against particular
Defendants, others remain unclear. See Doc. No. [23], 6 (ordering Plaintiff to
provide “[c]lear indications of which claims are being brought against which
Defendants”). For example, there is no indication at all against whom Plaintiff brings
his equitable claims in Count 15 or his “Retaliation” claim in Count 16. Doc. No.
6
For example, in Plaintiff’s § 1983 claim against the City, he puzzlingly
discusses how venue is appropriate in DeKalb County Superior Court. Doc. No. [25],
¶ 74. In his § 1983 claims against Linton, Deutsch, and Stojka, Plaintiff states that
each is being sued for failure to respond to his ante litem notice in violation of
O.C.G.A. § 36-33-4. Id. ¶¶ 80, 87, 88, 98. Moreover, in his § 1983 claims against
Linton, Deutsch, and Lowery, Plaintiff includes extended references to alleged
violations of the Georgia Open Records Act. Id. ¶¶ 82, 89, 94. Finally, Plaintiff
addresses procedural and substantive due process in the context of his claims for
intentional inflection of emotional distress. Id. ¶¶ 102–103.
11
[25], ¶¶ 137, 144–47. As to the latter claim, Defendants state that they “remain
clueless as to whom this claim is asserted against or its legal basis.” Doc. No. [26-
1], 15. The Court is equally confused. Plaintiff also references—but does not
explicitly assert in a numbered count—a claim under a federal criminal statute, 18
U.S.C. § 242. Doc. No. [25], 2. It remains unclear if Plaintiff is attempting to assert
a claim under that statute, and if so, against whom.
Finally, the Court finds that the scope of Plaintiff’s First Amended Complaint
is improper. As Defendants note, an order granting a defendant’s motion for more
definite statement is not an opportunity for the plaintiff to add new claims or parties.
Charles v. Christian Trust, No. 1:14-CV-3398-RWS, 2015 WL 13778556, at *1
(N.D. Ga. June 18, 2015) (“[I]n being ordered to replead under Rule 12(e), Plaintiff
is not being granted leave to amend her complaint under Federal Rule of Civil
Procedure 15(a)(2). Thus, she shall not use this as an opportunity to add new claims
and/or parties which are not apparent from the allegations in her Complaint.”); see
also Betts v. Conecuh County Bd. of Educ., No. 13-0356-CG-N, 2014 WL 7411670,
at *1 (S.D. Ala. Dec. 30, 2014) (noting that repleading under Rule 12(e) was “not .
. . an opportunity to add new claims and/or parties which are not apparent from the
allegations in her initial Complaint”); Washington v. Util. Trailer Mfg. Co., No.
1:13–CV–610–WEF, 2014 WL 2831189, at *5 n. 5 (M.D. Ala. June 23, 2014)
12
(“Plaintiffs may not use this order to re-plead Count I as an opportunity to add new
claims.”). Plaintiff was ordered to replead under Rule 12(e)—he was not granted
leave to amend under Rule 15(a)(2). Compare Fed. R. Civ. P. 12(e) with Fed. R. Civ.
P. 15(a)(2).
Rather than curing the enumerated deficiencies, Plaintiff exploited the limited
repleading opportunity by adding new claims and asserting existing claims against
additional Defendants. Specifically, the First Amended Complaint adds
constitutional claims under the First Amendment and Equal Protection Clause, a
purported claim under 18 U.S.C. § 242, and a retaliation claim. See Doc. No. [25],
¶¶ Introduction, 60, 64, 68, 72, 78, 85, 92, 96, 138–147. In addition, he expanded his
existing intentional infliction of emotional distress claim to include the City and
Defendant Stojka. See id., ¶¶ 99–107.
Plaintiff was provided with a detailed explanation of the deficiencies in his
original Complaint, as well as an enumerated checklist of steps necessary to cure
those deficiencies. Rather than using this information to prepare and file an amended
complaint compliant with both federal pleading standards and the Court’s January
6, 2021 Order, however, he implemented a superficial restructuring of the document
to give the appearance of compliance, while in actuality, doubling down and
defiantly adding unique twists to his prior shotgun pleading violations, making his
13
incorporation of previously asserted factual allegations nearly impossible to
decipher. Moreover, he exploited the re-pleading opportunity provided to him to
surreptitiously add claims and expand upon existing claims without leave of Court.
Plaintiff’s conduct in this regard – and the foregoing is by no means an exhaustive
list – clearly satisfies the standards for dismissal with prejudice under both Rule
41(b) and the inherent power of the Court to control its docket. See Gratton, 178
F.3d at 1374; Mingo, 864 F.2d at 102.
The Court further finds, based on the above-described conduct and its overall
review of the record, that Plaintiff has engaged in a clear pattern of delay and willful
non-compliance with the federal pleading standards and the Court’s Order regarding
the re-pleading of his Complaint. The First Amended Complaint cannot plausibly be
examined without compelling the conclusion that Plaintiff has willfully ignored the
detailed and specific guidance provided to him by the Court in favor of filing yet
another shotgun pleading – in fact, one that makes it even more difficult for
Defendants to ascertain what allegations have purportedly been incorporated into
which counts – while simultaneously using grammatical and semantical errors,
redundant allegations, obtuse sentence and paragraph structure, non-chronological
14
factual assertions, and other writing methods that make the bulk of the First
Amended Complaint incomprehensible. 7
Plaintiff’s acts and omissions in this regard also serve to establish the
inadequacy of lesser sanctions. See Coleman v. Chase Home Finance, LLC, No.
1:12-CV-0013-AT, 2012 WL 13013589, at *4 (N.D. Ga. June 22, 2012) (finding
lesser sanctions would not suffice where plaintiff failed to respond to defendant’s
earlier motion and another order for plaintiff to resubmit his complaint would likely
beget fresh round of shotgun pleading with no consequence other than continued
delay), adopted, 2012 WL 13013636 (N.D. Ga. July 27, 2012); Cummings v.
Mitchell, No. CV-118-161, 2020 WL 682032, at *4 (S.D. Ga. Nov. 19, 2020)
(finding lesser sanctions would not suffice where plaintiff disobeyed court order by
re-filing amended complaint replete with same issues court pointed out before,
which was not a cohesive legal pleading compliant with Rules 8(a)(2) and 10(b), and
which constituted yet another impermissible shotgun pleading).
Indeed, as previous held, even had he properly sought leave to do so, allowing
Plaintiff to replead would be futile. Despite clear and explicit instructions in the
7
And, in the process, improperly exploiting the re-pleading opportunity to
surreptitiously incorporate new claims into the First Amended Complaint and
expand upon existing claims.
15
Court’s Order regarding the re-pleading of his Complaint, Plaintiff’s Proposed
Second Amended Complaint did not remedy any of the deficiencies in the Complaint
or First Amended Complaint; rather, it exacerbates them. In this regard, the Proposed
Second Amended Complaint, like the previous iterations of the Complaint, was a
classic example of a shotgun pleading. The Eleventh Circuit has condemned shotgun
pleadings as “wreak[ing] havoc on the judicial system” and “divert[ing] already
stretched judicial resources into disputes that are not structurally prepared to use
those resources efficiently.” Wagner v. First Horizon Pharma. Corp., 464 F.3d 1273,
1279 (11th Cir. 2006) (internal quotation marks omitted). The Court has already
devoted substantial time to the consideration of Plaintiff’s previous complaints, and,
as demonstrated by the Proposed Second Amended Complaint, it is satisfied that
sanctions lesser than dismissal with prejudice would simply beget more shotgun
complaints necessitating the wasteful expenditure of judicial resources.
IV. CONCLUSION
For the reasons stated above, the Court has determined that the relief requested
by the Dunwoody Defendants, through their Motion to Alter or Amend Judgment
and/or for Reconsideration Pursuant to Rule 59(e), in which Espinoza joins, is due
to be granted. As such, the Court hereby amends its August 31, 2021 Order as set
forth below.
16
Accordingly, the Court GRANTS Defendants’ Motion to Amend or Alter
Judgment and/or for Reconsideration Pursuant to Rule 59(e), VACATES Section
III(A) of its August 31, 2021 Order [49], and AMENDS Section III(A) by replacing
it with the Discussion above. Plaintiff’s First Amended Complaint (Doc. No. [25])
is DISMISSED WITH PREJUDICE based on the Court’s findings that he has
engaged in a clear pattern of delay and willful contempt and that lesser sanctions
would not suffice to remedy the matter. Plaintiff’s Motion to Amend (Doc. No. [32])
is DENIED, and Plaintiff’s Motion to Strike Initial Disclosures (Doc. No. [31]) is
DENIED as MOOT. The Clerk is DIRECTED to CLOSE THIS CASE.
IT IS SO ORDERED this ___ day of _________, 2021.
HONORABLE STEVE C. JONES

UNITED STATES DISTRICT JUDGE
17

Halstead Legal Complaint Dismissal

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Halstead Legal Complaint Dismissal

Uploaded by

Copyright:

Available Formats

Case 1:20-cv-03474-SCJ Document 54 Filed 09/28/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

DEFENDANTS’ MOTION TO ALTER OR AMEND JUDGMENT

COME NOW Defendants City of Dunwoody, Grogan, Fladrich, Deutsch,

Respectfully submitted, this 28th day of September, 2021.

ELARBEE, THOMPSON, SAPP & WILSON, LLP

Attorneys for Defendants City of Dunwoody,

prepared in Times New Roman, 14 point.

ELARBEE, THOMPSON, SAPP & WILSON, LLP

Attorneys for Defendants City of Dunwoody,

IN THE UNITED STATES DISTRICT COURT

I hereby certify that I electronically filed the foregoing DEFENDANTS’

MOTION TO ALTER OR AMEND JUDGMENT AND/OR FOR

RECONSIDERATION PURSUANT TO RULE 59(e) with the Clerk of Court

filing, constituting service, to the following attorneys of record:

Laura E. Austin Theodore P. Meeker III

Respectfully submitted, this 28th day of September, 2021.

ELARBEE, THOMPSON, SAPP & WILSON, LLP

Attorneys for Defendants City of Dunwoody,

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM IN SUPPORT OF DEFENDANTS’

COME NOW Defendants City of Dunwoody, Grogan, Fladrich, Deutsch,

N.D.Ga., submit this Memorandum in Support of their Motion to Alter or Amend

The procedural history of this action – even if merely summarily presented –

demonstrates conclusively the pattern of delay, contumacious conduct, and willful

dismissal with prejudice would not suffice to remedy this conduct.

A. Plaintiff’s Frivolous Motion to Remand Filed in Response to Defendants’

Complaint, in addition to being vague and ambiguous in numerous respects, were

presented in such a disorganized, haphazard, and convoluted manner as to render the

Defendants also demonstrated that the Complaint constituted an impermissible

regard for controlling pleading standards.1

Tacitly admitting the merits of Defendants’ motions for more definite

[Doc. 11.] In so doing, Plaintiff blatantly misrepresented controlling law by arguing

Plaintiff presented this argument despite the plain language of 28 U.S.C. §

clearly consented to removal – as was both affirmatively alleged in the Notice of

Removal, [Doc. 1, ¶ 8], and expressly stated by Defendant Espinoza himself in a

written, signed, and dated Notice of Consent to Removal conspicuously attached as

an Exhibit to the Notice of Removal. [Doc. 1, Exh. B.]

Perhaps even more egregiously, Plaintiff completely ignored the legal

authority cited by these Defendants in their Notice of Removal which unequivocally

sanctioned the approach employed by them in demonstrating Defendant Espinoza’s

consent to removal in accordance with 28 U.S.C. § 1446(b)(2)(A). 2 While the

by Plaintiff – were authored by this Court.3 Had he any genuine interest in

prosecuting his claims and otherwise conducting this litigation in a manner

Defendants’ Notice of Removal was procedurally flawed.

to Remand – that notwithstanding its inclusion of “claims pursuant to 42 U.S.C. §

federal question jurisdiction.” [Doc. 11, ¶¶ 6-7.] Tellingly, Plaintiff purported to

omitting a proper citation to – the Supreme Court’s decision in Merrell Dow

has no application whatsoever to the present action.

referenced a federal statute as establishing the standard of care allegedly violated by

the defendant, which plaintiffs contended gave rise to a rebuttable presumption of

analysis by holding that “a complaint alleging a violation of a federal statute as an

effort to circumvent Defendants’ pending motions for more definite statement by

B. Plaintiff’s Conduct Following the Court’s Order Granting Defendants’

pleading deficiencies and comply with the Court’s directives. Therefore, on

February 25 and March 2, respectively, these Defendants and Defendant Espinoza

moved for an order dismissing Plaintiff’s First Amended Complaint, or alternatively,

In support of their respective motions, Defendants established that in filing

unauthorized purposes. [Doc. 26-1, p. 5; Doc. 27-1, p. 2.] Accordingly, Defendants

In particular, through these motions, Defendants demonstrated that Plaintiff’s

sanction would suffice. [Doc. 26-1, p. 19 (citing Gratton v. Great Am.

Defendants enumerated the following examples of specific conduct:

• The First Amended Complaint is nearly impenetrable as drafted, in that it